Panel Says Jury Should Have Been Told Witness Was Subject to
Life Term if He Did Not Cooperate

By KENNETH OFGANG, Staff
Writer

A federal judge violated
two defendants’ Confrontation Clause rights by not allowing their lawyers to
question a co-conspirator about the potential life sentence he was facing in
the event he did not cooperate with the government, the Ninth U.S. Circuit
Court of Appeals ruled yesterday.

In a sharply divided
decision, an 8-7 majority of an en banc panel held that the governmental
interest in having jurors render a verdict without regard to the potential
consequences for the defendant was outweighed by the defendants’ right to show
the extent of the witness’ bias.

But the court voted 11-4
to affirm the drug convictions of Patricia Ann Larson and Leon Laverdure of
Great Falls, Mont., as four of the eight judges who said their rights were
violated also concluded that the violation was harmless beyond a reasonable
doubt.

Larson, Laverdure, Rick
Lamere, and Joy Lynn Poitra were indicted for conspiracy in 2004, following a
police investigation into methamphetamine sales in Great Falls. The prosecution
notified Lamere that if convicted, he was subject to a mandatory sentence of
life imprisonment, with no possibility of release, because he had distributed
at least five kilograms of a substance containing methamphetamine and had at
least two prior drug convictions.

Plea Agreement

Poitra and Lamere later
agreed to plead guilty and testify against Laverdure and Larson. As part of the
agreement, the government held open the possibility of “substantial assistance”
departures from what would otherwise be mandatory minimum sentences of life
imprisonment for Lamere and five years in prison for Poitra, who faced a
40-year maximum.

At trial, prosecutors
presented evidence of six separate controlled buys in which the defendants sold
between one gram and 21 grams of methamphetamine at a time to police
informants. Poitra and Lamere testified that they had been involved in several
drug deals with the defendants, and acknowledged that they were testifying
under plea agreements and hoped to reduce their potential sentences.

Defense lawyers’
attempts to cross-examine Poitra and Lamere about the length of the mandatory
sentences they were trying to avoid were stymied by U.S. District Judge Sam
Haddon, who explained to counsel:

“You know that the
sentencing of defendants in this court is the responsibility of the court. And
I will make the decision about the appropriate sentence at the appropriate time.
That’s not a proper subject of cross-examination.”

Jurors found the
defendants guilty. Haddon sentenced Larson to more than eight years in prison
and Laverdure to more than 15 years.

Paez Opinion

Judge Richard A. Paez,
writing for the Ninth Circuit, said the district judge acted within his
discretion in limiting the cross-examination of Poitra, but should have allowed
jurors to learn of the severe sentence that Lemare was facing.

“We conclude that while
the district court restricted defense counsel’s cross-examination of Poitra,
defense counsel was able to adequately explore Poitra’s motivation to lie such
that the court’s restriction was not an abuse of discretion and did not violate
Defendants’ Confrontation Clause rights,” Paez wrote.

“Poitra testified that
she had pleaded guilty and agreed to cooperate with the Government in exchange
for a motion to reduce her sentence,” the judge continued. “She acknowledged
that only the Government had the authority to make such a motion, and that she
had a young child and did not want to go to prison.”

In Lamere’s case,
however, the disclosure of his status as a cooperating witness who was heavily
involved in the drug conspiracy; had a past record of drug convictions,
including one for which he served 30 months in prison; and was trying to cut
his sentence “did not reveal the magnitude of his incentive to the Government’s
satisfaction” and “was therefore insufficient to allow the jury to assess
Lamere’s credibility.”

The error was harmless,
however, because there was substantial cross-examination of the witnesses, as
well as strong independent evidence, and that jury was instructed to be
cautious about co-conspirator testimony, Paez said. Chief Judge Mary M.
Schroeder, Judge Raymond C. Fisher, and Judge Ronald M. Gould joined Paez’s
opinion.

Graber noted that Lamere
was ultimately sentenced to 38 years in prison, and said the disclosure of the
potential life sentence would have told jurors little that they did not already
know in terms of Lamere’s credibility.

The jury, she
elaborated, was told that Lamere was the father of five; that he was a drug
addict and dealer; that he had been to prison and was headed there again as a
result of his role in the drug conspiracy; and that he was trying to reduce his
sentence, but could only do so with the approval of the prosecutor.

Knowing the additional
fact that he would have gotten a life sentence without that cooperation would
have made little difference in assessing his motivation, Graber wrote, because
“given his age, a 38-year prison term was nearly a life sentence anyhow.”

Hawkins argued that the
defense should have been allowed to question both co-conspirators about the
potential mandatory sentences, and that excluding it from doing so was
prejudicial error in “the context of the trial as a whole.”

Poitra and Lamere’s
testimony, he argued, turned “[a] conceded street user of drugs” into a
distributor facing a lengthy prison term. The independent evidence cited by
Paez, he said, was insufficient to link the defendants to a conspiracy beyond
the small sales in which the informants participated.